Chief Justice Warren E. Burger: We’ll proceed then with 436, Mr. Solicitor General, where you left off yesterday.

Mr. Griswold: Well Mr. Chief Justice, I am beginning now.

Chief Justice Warren E. Burger: Where we left off yesterday.

Mr. Griswold: May it please the Court.

Before commenting my argument, I would like to explain one circumstance.

The brief which we have filed covers all three cases, the two Charlotte Cases and this case, and it says, the brief for the United States says amicus curiae.

In the Charlotte Cases, we were amicus curiae, though very active one and both lower courts and here, but in this case, we are a party.

We have been a party plaintiff since 1967, and we appeared here as a party, and the brief should’ve had to somewhat longer caption amicus curiae in those cases and for the United States as a party in this case.

I should also like to make it plain, though I assume it is entirely plain for what is going on that we do not support the Board here and never have.

We have been with the counsel for the petitioners here fighting against the dilatory tactics of this Board for the past three years and we still are and we do not support the Board in the Charlotte case and never had.

In the District Court in this case, after repeated appearances of the case in the Court of Appeals, which are cited in the memorandum, which we filed in connection with the petition for certiorari, we submitted a plan on January 27, 1970, and this was in fact based on one of the HEW plans but with some modifications.

And it was submitted then as following these Court’s decisions last term requiring immediate action, it was submitted then as one which could be implemented immediately pendente lite to remain in effect until the conclusion of the then current school year that is until June 1970.

The District Court rejected that plan.

On appeal to the Court of Appeals in expedited procedure and without oral argument, the Court of Appeals ordered the Government’s plan into affect on a permanent basis.

That put us in something of a problem because it was our plan, which the Court of Appeals had to approve although we had not offered it as a permanent plan, we did not file a petition for certiorari.

But we did file a memorandum with the Court saying that we thought that the decision would be reviewed and because the petitioners were filing a petition, we felt that it was not necessary for us to file a petition, which would have involved our seeming and the sense at least to attest the plan which we had filed with the District Court.

Now, the two cases, Charlotte and Mobile present perhaps the extremes of the situations, which may come before the Court.

In Charlotte, the District Judge applied perhaps his drastic irresolution as possible and we have contented that he may have applied the wrong standard in doing that.

Here in Mobile, number 436, the Court of Appeals has entered what may be regarded as a minimal order under the circumstances.

It does include specifically ordered by the Court of Appeals a majority to minority transfer plans so that no student is locked into any school where he is in the majority race.

Unknown Speaker: Does that also include the transportation [Voice Overlap]?

Mr. Griswold: Yes, Mr. Justice, that includes in non-segregated busing and I believe priority that is the right to get into the school and even against the contention that there are no places.

The order also includes allocation of teachers, so that a great many of the steps, which can be taken to remove the appearance of the school as being a black school or a white school have been taken.

In our view, it promises realistically the work and it promises realistically the work now, but I repeat, on a minimal basis.

At the argument yesterday, it was suggested by Mr. Nabrit that our position here and our position in the Charlotte busing cases were inconsistent.

We did not seek to appear orally in the several cases that we’re argued in the latter part of yesterday, but we did file briefs and we do support the District Court in the Charlotte busing cases, the three-judge District Court, which held in the North Carolina statute unconstitutional numbers 444 and 498.

But I believe that our positions in these cases are consistent.

Our position here and there is that the Constitution requires disestablishment of dual school systems requires that disestablishment of dual school systems requires affirmative action to disestablish dual school systems, no more, but likewise no less.

In the bus case arising the North Carolina statute, numbers 444 and 498, we think that the statute interferes without objective and so was invalid.

Here, we think that the order of the Court of Appeals does show promise of eliminating the dual school system, though barely so and thus we support the decision below.

I think that this point --

Unknown Speaker: Perhaps, I’m mistaken but isn’t there possibly a little question bugging in the statement of your position?

Isn’t the real issue here, what is required to completely disestablish a dual school system?

The gentleman on this side of the table say that the very disestablish -- the very disestablishment of a dual school system requires the elimination of all racially identifiable Negro schools unless that is shown to be absolutely impossible.

Mr. Griswold: Yes, Mr. Justice, I --

Unknown Speaker: And you proceed, you say once a dual school system is disestablished, then the neighborhood schools were all right and that’s kind of skipping over the basic issue, isn’t it?

How is it required to disestablish this dual school system?

Mr. Griswold: Surely, the problems are very complex and highly interrelated.

I think it is possible to post their argument in a form which says that the schools are not disestablished until no black student may be assigned to a racially identifiable black school at any grade level, which is the position for which they contend.

Our position is that that is not required, that it is required to not merely to eliminate any discrimination now which is what the North Carolina statute does, if we were starting out a new with a clean slate and we’re writing a picture for what America ought to be, we might well include the North Carolina statute in it.

But the statute was interposed at a time when there was a great deal of history and a great many practical consequences and we think that the statute interferes with actions, which must be taken in order to disestablish what had clearly been an existing dual school system.

Unknown Speaker: Perhaps I can ask my question this way Mr. Solicitor General, your position as I understand it is that once there has been a disestablishment, dismantling of a dual school system, then a neighborhood school system is constitutionally permissive.

Now, may I ask what in your view does the Constitution require for that first step to disestablish, to dismantle the dual school system as a [Voice Overlap]?

Mr. Griswold: Well Mr. Justice, let me start with a slightly different example which I want to use in my answer.

Suppose we had a school system, where there was absolutely no trace of any prior discrimination, no dual school system ever, nothing with respect to public housing or restrictive covenants or anything else.

And we find that in this system, a lot of people of German descent come to this community and a lot of people have Slovak descent had come to this community, and a lot of Negroes are living here although Negroes are living elsewhere.

And in that community, we find a school which is all or 90% black, I would say that there is nothing in the Constitution which requires that there’d be any change in that situation.

In other words, if you can find a place where there is no past history of discrimination, I do not believe that anything can be found in the general language of the equal protection laws or the dual process laws which supports the position that no black student may be assigned to a racially identified school at any grade.

Chief Justice Warren E. Burger: Wouldn’t you want to update to make that hypothesis include in a past or present discrimination?

You wouldn’t rule out present discrimination.

Mr. Griswold: Oh!

Yes, I would certainly rule out any present -- I would, if there is any present discrimination or past discrimination, then steps must be taken to eliminating, and how extensive, how drastic those steps are.

It seems to me depend on two things, (a) on the one hand, the need, the extent to which there has been past discrimination and the effect of that still continues which is very great in Mobile and certainly considerable in Charlotte.

And on the other hand, on this problem on which we haven’t been able to find a word and I have no doubt to never will be exactly one word, reasonable, feasible, absolutely unworkable.

I think absolutely unworkable is too strong, I seize upon feasible because I thought it will just considerably stronger word than reasonable, but it ought to be explained with words which indicate that strong action is required to eliminate past discrimination.

Unknown Speaker: May I ask you one question, why isn’t the one word that applies to all as to whether or not there is discrimination on account of race now?

Mr. Griswold: I think Mr. Justice, that is clear provided in the null, you subsumed everything that has happened in the past in which has its effect null.

And there is undoubted, there is obviously enormous amounts of that effect in Mobile and a great deal of it in Charlotte, and to eliminate discrimination now, you have to take steps to eliminate the effects of that past discrimination.

In my view, it is not enough to say, well, we’ll leave things just as they are, but from now on, we’ll be good.

That seems to me not to take the steps which this Court has long indicated beginning in Cooper and Aaron and then Green and Montgomery County must be taken to eliminate the effects of past discrimination which effects are effective null.

Unknown Speaker: What you’re saying is it has to be some race issue.

Mr. Griswold: There has to be some intention to race paid in the process of eliminating the effects of past discrimination.

Yes, Mr. Justice.

Unknown Speaker: [Voice Overlap] on the basis of race?

Mr. Griswold: On the basis of race, yes Mr. Justice.

But the touchstone is we submit the disestablishment of the dual school system.

Unknown Speaker: Why do you bother me with that Mr. Solicitor General?

Mr. Griswold: I’m sorry Mr. Justice.

Unknown Speaker: Why do you bother me with that?

Because I’m trying to draw a distinction because something was done wrong in the past, my understanding of the Constitution it forbids discrimination on account of race now.

Mr. Griswold: Mr. Justice, if that something which was done wrong in the past has a persistent and continuing effect which is present on the scene now, then it seems to me that action must be taken to negative that effect.

Unknown Speaker: Even though it itself to do that would amount to discrimination?

Mr. Griswold: Yes, Mr. Justice, I think that’s required by -- I think that bridge has been caused long past in the decisions of this Court that actions must be taken to eliminate the effects of past discrimination.

That’s Green, that’s Montgomery County, in Green, the statute on its face is utterly nondiscriminatory.

But actually, it doesn’t work to eliminate the effects of past discrimination and the court held it invalid.

In Montgomery County, the court held that teachers must be assigned because of race.

We supported that.

I was consulting the case.

The Court adopted it, and I hadn’t suppose there was any ground to question that actions must be taken now based on race in order to eliminate effects of past discrimination, and we support that position.

It’s only a question really of how far that has to go.

This it seems to us is what the Court ordered onto the Constitution in Brown.

It’s what the court spelled out in Green and Montgomery County and it is the standard which should be applied here.

There is today as always a tendency for legal thinking to be too much dominated by clichés.

Perhaps this is true about racial balance.

There is likewise I think the possibility of great misunderstanding in the talk about neighborhood schools.

For what is worth to the best of my ability, I do not think that you will find the phrase, neighborhood schools in our brief.

You will find neighborhood and you will find schools, and perhaps this is just a quibble.

But that phrase is used by some persons as a subterfuge for maintaining segregation and I’ve seen that in my own area of our country.

There is no doubt that when applied in bad faith, it can work out that way.

I have no doubt for example that if were applied in Mobile without any court supervision that it would work out that way.

And I am not appearing for such a conception of the neighborhood school.

As the President said in his statement of March 24, 1970, “while the dual school system is the most obvious example, the jury segregation has also found in more subtle forms where authorities have deliberately drawn attendant zones or chosen school locations for the expressed purpose of creating and maintaining racially separate schools, the jury segregation has held to exist.”

In such cases, the School board has a positive duty to remedy it.

This is so even though the Board ostensibly operates a unitary system.

And in the same statement, the President said in referring to executive action, “the neighborhood school will be deemed the most appropriate base for such a system.”

Note that he said base.

He did not mean that it was the sole method or the sole requirement.

Many methods are available and our evidence in the record in these cases which will serve to eliminate or minimize the consequences of past official conduct.

Thus, there can be truly impartial zones, there can be pairing of schools, and this was particularly relevant in the smaller communities which previously had dual systems with two schools.

That was true in New Kent County, you have a black school and you have a white school.

It’s easy to eliminate the dual schools system by saying one school will take grades one to four, the other school will take grades five to eight.

And there can be closing of some schools and expanding of others, and there can be satellite pairing when the distances are not too great and when the corridor is not a clear jury mandate.

And of course, there must be proper allocation of faculty, and there must be elimination of discrimination in busing and in athletics and activities.

All of these things can be done and should be done as far as feasible in order to eliminate the consequences of past discrimination.

School boards are making decisions all the time.

They will not have done enough if they simply established properly designated neighborhood schools.

They are making decisions daily, short range and long range.

They ought to be required when they make decisions to make the choice, which will tend to overcome segregation.

The decision making process cannot be used to perpetuate segregation.

What schools are you going to expand?

What programs are you going to promote?

All of these things must be properly handled and are required in addition to the basic concept of having children, especially small children, go to school within a feasible distance of their own homes.

Now turning to another matter, there’s been some reference in these arguments to the Civil Rights Act of 1964 and the provision which Congress included there with respect to busing.

That was in Section 407 (a) of that Act and the Section specifically authorizes the Attorney General to institute for or in the name of the United States say civil action for relief, and then it goes on and says provided that nothing herein, nothing herein is the key word of that provision, shall empower any official or Court of the United States to require busing to achieve racial balance.

Well, this is not a suit by the Attorney General under Section 407 (a), there is no provision in that statute or in any other statute because somewhat similar things have been enacted as riders on HEW Appropriation Act which take away any powers which the courts otherwise have.

All that this statute does is to make it plain that that statute does not add to any authorities what the Court might otherwise have.

Or let me put it another way, it makes it plain that Congress is not under that statute making an enactment under Section 4 of the Fourteenth Amendment, which requires or specifically authorizes that that kind of busing be done.

I think that the statutory acts in both here and in the Appropriation Acts is relevant simply because it indicates that Congress has not sought an extension to require busing to achieve racial balance which in my opinion, though it’s not here and I haven’t fully considered it and it isn’t brief.

But in my opinion is now advised, Congress could in exercising its powers under Section 4 of the Fourteenth Amendment.

All I think that that statutory language means is that Congress has not exercised such powers.

Unknown Speaker: Well, you don’t think under that supplemental clause, the Court could do that, do you?

Mr. Griswold: I think Mr. Justice that a court can require a busing --

Unknown Speaker: It gives Congress the power to do it.

Mr. Griswold: The court can require busing where it is needed in order to provide the remedy to disestablish the present consequences of past discrimination.

Unknown Speaker: Well, I don’t understand you to put that on the same level as the power of Congress, do you?

Mr. Griswold: No, Mr. Justice, I don’t.

That’s simply a question of the court fashioning a remedy to meet the right which had has established in the Brown case and several subsequent decisions.

The right not be discriminated against and that includes not only present enactments but the application of present official decisions to fact circumstances which arose out of past situations.

Unknown Speaker: How far past?

I’m thinking for example of my State of Ohio, which up until about 90 years ago, a lot of school boards to maintain, conduct segregated schools explicitly allow that.

Mr. Griswold: And Massachusetts did until 1849.

Unknown Speaker: And about 90 years ago, I will repeal that statute into the way the power of School boards to maintain segregated schools, but I’m sure they’re may be good many vestiges of that former official policy.

Mr. Griswold: Well, Mr. Justice, I would find it hard to answer that question without knowing more about the facts, knowing how persistent the consequences had been, I would think the chances were very great that it had washed out, but I can conceive --

Unknown Speaker: Certainly, in the big cities of Ohio as in the big cities of any other states that I’m familiar with, there are neighborhood residential patterns in which reflect [Voice Overlap].

Mr. Griswold: I don’t know how far back Mr. Justice.

I think if it can be shown that the effect of the past discrimination persist to any substantial extent that that is relevant.

Unknown Speaker: Of course this question would implicate -- raise the question as to whether not restrictive governance and housing practices --

Mr. Griswold: Yes, yes, Mr. Justice.

Unknown Speaker: -- are also in the category of the jury.

Mr. Griswold: It does.

Unknown Speaker: Which is not in this case?

Mr. Griswold: There are in the --

Unknown Speaker: Well, it is in this case, I thought.

It’s certainly in the Charlotte case.

Mr. Griswold: It’s certainly in the Charlotte case and I believe it’s in the Mobile case.

Unknown Speaker: I thought about 436.

Mr. Griswold: Yes.

Unknown Speaker: But I thought it was in this case, isn’t it?

It’s in the record of showing --

It’s hard when you have a statute segregating the schools by races.

It’s hard to --

Mr. Griswold: I think that some of those things are somewhat attenuated just as the historical instance of Justice Stewart has given, and if you had only those and no more.

The Court might say well there’s a stream of history and it isn’t (Inaudible) not much of what it’s left, but I don’t think -- I think it is something that has to be considered and evaluated and passed upon.

I don’t say that the mere existence of it alone is its efficient basis for a present remedy.

Now, there are a couple of other points to which I should like to refer.

Unknown Speaker: You mean, if there was nothing, no history of a compulsory school segregated system, my State of Washington has never had that by law, but if they had that --

Mr. Griswold: Washington?

Unknown Speaker: The State of Washington.

Mr. Griswold: The State of Washington.

Oh!

Excuse me.

[Laughter] I though you meant that it’s what you come out of here.

Unknown Speaker: If they had shown on the record of pattern of restrictive covenants produce these ghettos, would you think that that would be the jury segregation?

Mr. Griswold: Or Mr. Justice if it could be shown that schools had been specifically located to deal with these particular groups and for that purpose, I think there might be something which would provide a basis for a remedy.

Unknown Speaker: That wouldn’t be because of de jure or de facto, would it be because of the fact as discrimination?

Mr. Griswold: Oh!

Mr. Justice, it would be de jure because the decision that placed the school there was state action.

Unknown Speaker: Was the state a reason be that it is discriminatory action?

Mr. Griswold: All right Mr. Justice --

Unknown Speaker: On account of race?

Mr. Griswold: -- it was discriminatory action on account of race.

The effects of which may still persist.

Now, I would like in the short time remaining to make reference to two further factors to which very little has reference has been paid here.

It would seem to me to be very important.

The first is the problem of re-segregation, a great deal of effort has been expended and trying to desegregate schools in many parts of the country in north and south and it is constantly disrupted because of movements of population and withdrawal from schools going into private schools which I supposed the District of Columbia declared some most familiar examples.

Mr. Greenberg said yesterday that under his plan in three years, everything would be straightened out.

I can guarantee that it won’t be.

Under his plan, there will be in any city, there will be shifts and adjustments and it will have to be followed.

One of the problems, it seems to me in this area is not to require too much.

If you require too much, you aggravate the problems of movement and withdrawal.

If you set up a system which provides a good deal of elimination of past discrimination and provide some hope that it might be reasonably stable, you may achieve a great deal more in the long run than if you adopt the standard which counsel for the petitioners have advanced.

And then, there is another aspect, this is the problem which is even --

Unknown Speaker: Mr. Solicitor General, excuse me.

I’d like to pursue that just a moment.

The re-segregation matter, in the experience of HEW or the Department, have you arrived at any rules of some or even any more complicated rules as to what promotes or hinders re-segregation sense.

Is there a tipping point that you read about in the brief or something in the picture or not?

Mr. Griswold: Mr. Justice, they talked about it and I’m not qualified to respond to the question.

Unknown Speaker: Mr. Greenberg or Mr. Nabrit yesterday suggested that Judge McMillan had in mind this problem and the remedy that he arrived at in the sense that there was a Negro minority that could be educated in white school without having -- reaching any tipping point.

Is that --

Mr. Griswold: Mr. Justice, I have read about that as a member of the Civil Rights Commission.

I have read about it as a citizen.

I see it, there certainly comes a place when the white fleeing exonerated or becomes complete.

I’m not qualified to respond to the question in any sense as an expert or even as a lawyer.

Unknown Speaker: If you -- I would think that is preventing re-segregation is a consideration in devising a remedy why you must have some basis for fashioning that remedy.

Mr. Griswold: I have no doubt Mr. Justice that there is a tipping point.

What I’m not qualified to say is where it is and I suspect that it vary widely according to the circumstances including the opportunities to get out either through moving to other parts of the city or the use of private schools.

I would like to make reference to one other thing which is black separatism, something that we wouldn’t began to learn about in recent times and which many of us did not foresee.

What’s its far from clear, how far all of the people represented by the petitioners here.

I want to have what they seek for them.

Maybe they ought to have it, maybe it would be good certainly in my view of the public to facilitate they’re getting it whenever they want it, but it isn’t clear to me that children should be forced into schools either the black children should be forced into schools that they don’t want to go to.

I encountered this first in connection with predominantly black law schools and we have of course the example of Howard University here, which I suppose everyone has the strongest feelings that it should be supported in the United Negro College Fund and other such things.

There still remains a problem as to how far black people should be forced into these matters.

And so, I conclude that the judgment below and this case should be affirmed as an experiment.

Of course, it will have to be watched to see how it works including the good faith of the Board and the diligence of the District Court, and the effects of supervening events which will always be with us.

Unknown Speaker: Excuse me, did -- do I understand you to say Mr. Solicitor General, that the objecting Negro children should be given the privilege of opting out of [Voice Overlap]?

Mr. Griswold: No, Mr. Justice, I didn’t quite say that.

I didn’t say that all.

I just said that in evaluating the standard or the objective which is to be reached that this is one of the factors, one of the intangible, immeasurable factors like the problem of re-segregation that the District Court surely ought to take into account, and if so, it seems to me this Court has to recognize it in some ways.

Unknown Speaker: Well, what’s the position of the United States as to whether or not objecting Negroes or objecting whites should be able to [Voice Overlap]?

Mr. Griswold: I think Mr. Justice, it’s quite plain that when the plan is established, when it is adopted, there shouldn’t be no opting out except the majority, the minority transfer which we have had in which we have provided for.

What I’m talking about is what kind of a plan should be adopted and should be approved and I think that it is relevant to take into account in connection with that.

Before we begin our argument time, we have some maps on an easel that we could not bring in because of the admission ceremonies which we need to bring it now.

It will make a moment.

Chief Justice Warren E. Burger: Very well.

You may proceed Mr. Philips.

Mr. Abram L. Philips, Jr.: Wait.

Your Honor, we have another.

Chief Justice Warren E. Burger: Oh!

Mr. Philips.

Mr. Abram L. Philips, Jr.: May it please the Court.

I represent the Board of School Commissioners of Mobile County.

My client was the defendant and the appellee below and it’s a respondent here.

I’m advised by the clerk that I have 45 minutes time for argument plus to share this with another respondent, the Parent-Teacher Association.

So I will attempt to limit my argument to not more than 30 minutes.

Unknown Speaker: May I skip the beginning.

Are you supporting or defending the judgment?

Mr. Abram L. Philips, Jr.: Your Honor, we asked that the judgment be overturned and sent back to the District Court for the formulation of a new plan within the light of certain principles that we hope the Court would reaffirm.

Although I’m press for time to present my own argument, several assertions made by the petitioner yesterday should not go unanswered, so I will rejoin just briefly.

Petitioner stated that the school board has changed its people assignment plan from year to year and sometimes more frequently.

May I remind the Court that since August 1966, this school system has each year received an order of the Court requiring a new or change desegregation plan.

But since 1967, the student assignment portions of these plans have been devised by someone other than the school board, either the District Court, the Court of Appeals, HEW of the Department of Justice.

Since January 1970, we have been ordered to implement six different plans of student assignment in the desegregation process is not the Board that has been changing the plan.

They are merely attempting to the best of their ability to carry out the orders of the Court.

Petitioner in its argument --

Chief Justice Warren E. Burger: But do I -- let me make sure I understand you.

Are you telling us that the Board has been ordered to implement six different plans during this year all relating to the same subject matter and the same area?

Mr. Abram L. Philips, Jr.: Yes.

Chief Justice Warren E. Burger: And these plans, by inference I take it they’re in conflict with one another, in some restraints?

Mr. Abram L. Philips, Jr.: Well, they are different from one another.

They take different approaches.

They draw different zones, one withdrawn by HEW, one by the Justice Department, one by the Court of Appeals, two by the District Court.

Several were superseded before they could be placed into implementation.

Others, the steps towards implementation began and then they were superseded.

Chief Justice Warren E. Burger: Which one is in effect now?

Mr. Abram L. Philips, Jr.: A combination plan that involves elements of a plan drawn by HEW modified by the Justice Department, ordered by the Court of Appeals, modified by the District Court and re-modified by the Court of Appeals.

Petitioner has framed its argument procedurally in terms of results, not the Constitution but results.

So let me show you something of result.

Craighead School listed on Mr. Greenberg’s map is 76% black. This in the time of the dual school system was an all-white school.

Lienkauf 64% black at one time an all-white school.

Old Shell Road 80% black at one time an all-white school.

Palmer at one time an all-white school, now listed by Mr. Greenberg is all-black.

Glendale at one time an all-white school, now listed by Mr. Greenberg at 70% black, the same pattern goes through out.

Thomas 62% white once an all-black school.

Unknown Speaker: Where is that state 65?

That’s the divided.

Mr. Abram L. Philips, Jr.: That’s the divided.

Unknown Speaker: And in terms of residential patterns, does record show what percentage of Negroes lived or what the racial makeup is for those who lived east to that divider and those who lived west to that divider in Mobile?

So this is some of the results if we wish to frame things in terms of results rather than in terms of complying with the constitutional mandate.

Now, let’s turn to a moment to another question that was raised and that is the question of the effects of past discrimination.

Petitioner relies heavily on the fact that busing to preserve segregation occurred in the past and this is freely admitted in the brief.

They point two examples of busing for example where the students in this area which is in the rural area and I might remind the Court that this is a map of Metropolitan Mobile, Prichard and Chickasaw, three cities with co-terminus boundary lines.

This is roughly 18 miles North to South and 13 miles from East to West.

The county itself is 53 miles from North to South and 27 miles East to West, from the river to the Mississippi line from the Gulf of Mexico North.

With reference to the bus, students carried from these area black students bused to this area four or five years ago into this school.

Unquestionably this occurred, but these students are no longer bused and have not been bused for four or five years.

How can it be contended that there’s any effect left from the dual system as a result of busing 30 students from here to here five years ago?

Certainly, it was in effect at that time but we’re dealing with a presently existing effect of the once dual system.

The same thing occurs with reference to split zones of nine contiguous zones as petitioner referred to yesterday.

With reference to the Whistler and Thomas schools indicating the fact that one time Thomas an all-Negro schools questioned an all-white school and people from this area whereas the time there was no school went pass to the Thomas school to the Whistler school.

There again, this occurred four or five years ago.

Where can it be any present existing effect from this as it exist now when you consider that Thomas, which was once the all-Negro school is now 62% white and has been for two school terms predominantly white.

And Whistler, which was at one time all white is now 52% white although last year it was predominantly Negro.

Petitioner has stated that Mobile has never adhered to the neighborhood school concept.

This is incorrect and I must adopt at least in the part of the language of the Solicitor General with reference to the misconception with reference to the clichés or seizing upon words such as the neighborhood skill concept.

As the record will show, the Mobile school system has always adhered to and favored the neighborhood school’s concept based upon specific geographic zones except when ordered by the Court to do otherwise.

Admittedly, prior to the disestablishment of the dual school system, at one time they existed that the dual zones, overlapping zones, one zone for black, one zone for white, superimposed upon one another.

This has been disestablished and was disestablished as much as four years ago by the simple elimination of both zones redrawing the zone around each school, a unitary zone so that every person, black or white goes to the school within the zone regardless of the present or past racial makeup of the school.

Admittedly, prior to the disestablishment of the dual system, there were these overlapping zones but they no longer exist and it should be observed in its adherence to the neighborhood school concept as a concept.

The Mobile Board opposed freedom of choice when this first concept looked upon as apparently a panacea, which didn’t pan out first came upon the scene.

Admittedly, several years after the freedom of choice concept, which was foreign to the Mobile school system came upon the public saying that Board’s republic pressure was forced into asking the Court for freedom of choice.

But we have never had freedom of choice in the Mobile public school system except when it was specifically requested by motion of the Justice Department for a freedom of choice in the rural portion of the system.

Chief Justice Warren E. Burger: How long ago was that?

Mr. Abram L. Philips, Jr.: When the freedom of choice?

Unknown Speaker: And for how long a period did it [Voice Overlap]?

Mr. Abram L. Philips, Jr.: Now I think it was -- I think it came in the decree of the District Court in July and August 1968.

The District Court entered a decree on July the 29th pursuant to the motion to amend by the Justice Department at the end of the supplemental decree on August the 2nd, three days later.

Unknown Speaker: Who are the individual was given a freedom of choice?

Mr. Abram L. Philips, Jr.: I’m sorry, I didn’t hear that.

Unknown Speaker: Who was given freedom of choice, pupils or parents?

Mr. Abram L. Philips, Jr.: The -- it was a Jefferson-type freedom of choice allowing the pupil above a certain age or for the younger pupils, the parent should exercise its choice in his behalf.

Unknown Speaker: Was it wide-open freedom of choice?

Mr. Abram L. Philips, Jr.: Wide open --

Unknown Speaker: Majority to minority, minority to majority, both races?

Mr. Abram L. Philips, Jr.: Yes, it was full freedom of choice within the terms of freedom of choice specified by the Jefferson decree.

If you recall the Fifth Circuit Court of Appeals in Jefferson, spelled out very specifically and minutely a method of applying a freedom of choice plan and this was adopted by the District Court, and ordered for implementation in the portion of the system.

Even there, the freedom of choice was limited to the rural portion of the system, which is not shown here.

Unknown Speaker: And which is really not very much an issue in this case, isn’t it?

Mr. Abram L. Philips, Jr.: No, sir.

I certainly pointed out from the standpoint to show that we -- the school board in adhering to its favoritism for the neighborhood school concept even opposed that at that time, it was placed upon.

Unknown Speaker: I see.

Justice Thurgood Marshall: Well, inherent if the Board statewide concept, race was involved if I understand you correctly, in a 10-block square area where they have both white and Negro students.

If I understand you correctly, you have two neighborhood schools.

Mr. Abram L. Philips, Jr.: That is correct.

Justice Thurgood Marshall: One white and one black.

Mr. Abram L. Philips, Jr.: That is correct, that is what I understand [Voice Overlap] but you obsess them to me.

Justice Thurgood Marshall: Could I conclude from that regarding with the phrase neighborhood school is segregated, does that involve the other?

Mr. Abram L. Philips, Jr.: It was in fact -- it was at that time, on a dual system, a dual set of zones but we have disestablished the dual system, we have disestablished the dual zones.

Justice Thurgood Marshall: In every area?

Mr. Abram L. Philips, Jr.: In every area.

Justice Thurgood Marshall: Of the city?

Mr. Abram L. Philips, Jr.: Of the city.

Justice Thurgood Marshall: And so now --

Mr. Abram L. Philips, Jr.: And the county.

Justice Thurgood Marshall: But I’m only using the city if you don’t mind.

Mr. Abram L. Philips, Jr.: All right, sir.

Justice Thurgood Marshall: In the city itself, you still have all-black schools?

Mr. Abram L. Philips, Jr.: Yes, sir.

Justice Thurgood Marshall: And all white, how many?

Mr. Abram L. Philips, Jr.: As I recall, we have seven schools that are literally all-black or all-white, two of them, all-black and five all-white.

Blount High School, black 2033, white 41, this is the actual enrollment.

The zone drawn by the Court and assigned to that school is 1233 black, 1041 white, out of 1041 students, 41 are in attendance.

Unknown Speaker: Where did the 800 blacks have gone?

Mr. Abram L. Philips, Jr.: Your Honor, I don’t know.

Unknown Speaker: Where did the thousand white people go, white students?

Mr. Abram L. Philips, Jr.: I have bad ideas to that.

We know as the record has indicated and as I have indicated in my brief, this school system, since 1965, when the population of Mobile has increased constantly and the school age population even more proportionate.

While the population has continued to increase since 1965, the school enrollment has gone down.

We’re now some 10,000 students less than we had in 1965.

We know that many of the students have enrolled in private school.

We know that many of these students who were supposed to be in the Blount zone as assigned by the Court have simply moved their residence, some within this county, some to other places, perhaps some to other parts of the country that have not yet faced this problem.

Unknown Speaker: You have the figures for all the other schools, are they in your brief?

Mr. Abram L. Philips, Jr.: Yes sir.

Unknown Speaker: On the actual -- I mean, the actual attendance as compared of what the Court has contemplated?

Mr. Abram L. Philips, Jr.: They’re all before the Court in this respect.

In my brief, I have a chart at page 7, which shows the assigned enrollments according to the assignment made by the Court.

In the supplemental brief of petitioner, they set out the enrollment as of October 2nd.

In 1963, when the desegregation litigation first began in the school system, it was in both at legal and a practical sense, a dual school system.

Unknown Speaker: May I have one other question before you leave the point you own?

You have just referred to a district that alleged all black.

Mr. Abram L. Philips, Jr.: Yes, sir.

Unknown Speaker: What is the argument of the others as to how you could get white people into that school should?

Mr. Abram L. Philips, Jr.: Your Honor, the District Court, the Court of Appeals, HEW and the Justice Department along with the school board have struggled with that problem for three or four years and we have not been able to do it.

Unknown Speaker: I mean, what is the argument of the other side from you as to what you should do to change that black school all-black into having some whites?

What would be your guide?

Mr. Abram L. Philips, Jr.: Even to close the school --

Unknown Speaker: Of that argument?

Mr. Abram L. Philips, Jr.: Even to close the school, and we have closed during the process of this litigation, 12 to 16 schools, 12 which were all black at one time in an effort to eliminate all black schools.

The only other solution they suggest is to pick out the white or near all-white school and cross bus.

Unknown Speaker: You mean, pick out another area?

Mr. Abram L. Philips, Jr.: Yes, sir.

Unknown Speaker: That of a white school?

Mr. Abram L. Philips, Jr.: Yes, sir.

Unknown Speaker: Pick out another area and cross bus students?

Mr. Abram L. Philips, Jr.: Yes, sir.

Unknown Speaker: So that you can put the white over unto that?

Mr. Abram L. Philips, Jr.: Yes, sir.

Unknown Speaker: And the blacks, some of the blacks herein to another?

Mr. Abram L. Philips, Jr.: Yes, sir.

If I’m right, I’ll use or another Mr. Greenberg’s map.

An example of that is the thing they would do with Thomas School and Whitley School.

This is the plan drawn by HEW.

The Plan B One Alternative by which HEW proposes to do all of this cross busing, this is where every two or three attendance areas within the system are packed together for example, Dodge, Owens, this is roughly 13 miles.

Williams, they make the three-corner pairing of these zones.

They send every student in grade 1 and 2 from all the three zones, to one of these schools that means, busing 15 miles from here and here and 9 miles from here and here.

They send every student in grades 3 and 4 from all three zones to this school.

Unknown Speaker: That means sending -- I just want to get exactly what it means, does that mean sending some of the blacks on a 13-mile drive away from schools that are close to them?

Unknown Speaker: That’s not required by the judgment of the court that you’re attacking?

Mr. Abram L. Philips, Jr.: No, sir.

But this is what the petitioner has asked pendente lite.

Justice Thurgood Marshall: Mr. Philips, are those the lines that the school board drew?

Mr. Abram L. Philips, Jr.: No sir, these are the lines at HEW.

Justice Thurgood Marshall: Or I mean the district line?

Mr. Abram L. Philips, Jr.: No, sir --

Justice Thurgood Marshall: The zone lines, they’re not sure?

Mr. Abram L. Philips, Jr.: No sir, that’s what HEW do.

Justice Thurgood Marshall: That’s what they do.

Mr. Abram L. Philips, Jr.: Right, another example of this is Thomas and Whitley.

It is Thomas and Whitley.

Most of these were at one time all-Negro schools.

Thomas is now -- has 74 black students and 160 white.

Whitley has 345 black students and 127 white.

Justice Thurgood Marshall: Is that true of what you are arguing should be continued, would that be true?

If you should win --

Mr. Abram L. Philips, Jr.: Yes, sir.

Unknown Speaker: -- would that same condition continue with reference to the personnel of the school in it too?

Mr. Abram L. Philips, Jr.: Yes, sir.

Yes, sir.

Of course we asked that it be sent back to the District Court for formulation of a plan in light of certain principles which we hope would eliminate some very grossly gerrymandered zones that I may be able to get to in later portion of the argument upon I may not.

I’d like now to respond to the question that’s been raised a couple of times by the Chief Justice and by others and that is with reference to the necessity of the Court to continue to balance schools once we move to a purely result-oriented constitutional theory.

And I suggest to you this, absent the power of the Court to force people to attend public school and I might mention to you that there is no applicable requirement that by law that a student attend to school in Mobile County, Alabama, there’s no compulsory attendance law.

Absent the power of the court to force people to attend public school and absent the power of the court to restrict all people, black or white, rich or poor, in the movement of their residence, then the court will forever and eternal in the business and the process of balancing.

The balancing process can never end.

What better example of this could I give you than the supplemental brief filed by petitioner the day before yesterday?

A quote from the report in the brief where they report to set out the student’s assigned by the court order that is here attached.

The report shows that there are 11,000 and I’m quoting, the report shows that “there are 11,894 black elementary students in Metropolitan Mobile.

The percentage of those assigned to all black schools is 64%.

Then they proceed to list these enrollment figures.

They do not draw the distinction between those assigned by the court and those actually enrolled.

The figures they quote are those enrolled, not those assigned by the court order as a consequence of the Court order.

And so, we get back to the figures I quoted before of Blount High School where the court assigned 1233 Blacks, 1041 whites, and it comes out an all-black school with 41 whites enrolled and 2033 blacks enrolled.

While Washington Junior High School where the court assigned 780 blacks, 636 whites, there are 809 blacks and 59 whites enrolled, and the same thing appears throughout.

When this litigation first began in 1963 as I described, there’s no question but what we had in dual school system.

But this dual school system has been disestablished.

In 1967, after a flow of evidentiary hearing, the District Court in an exhaustive opinion and finding effect after hearing and spending some four weeks found and stated that the dual system had been disestablished in every particular prescribed by the Courts except the element of faculty and student assignment.

Now, there has been no finding to the contrary by any court since that time, now that covers transportation, athletics, extracurricular activities, facilities, activities and programs.

This finding was reconfirmed as late as the June 9, 1970 opinion of the Court of Appeals.

The two areas labeled as deficient by the District Court in 1967 of faculty assignment and student assignment.

These are since been rectified.

The faculty by the assignment of teachers, so as to create a biracial faculty in every student of the system but two, two years ago in every school of the system but one last year and that one I might mention is a school isolated on Dauphin Island in the Gulf of Mexico with 20 white students in the school.

Unknown Speaker: And only one teacher, isn’t it?

Mr. Abram L. Philips, Jr.: And only one teacher.

Unknown Speaker: You could hardly have a biracial faculty, wouldn’t you?

Mr. Abram L. Philips, Jr.: I hardly think so.[Laughter]

This year of course, in order comply with the order of the Court which requires a 60:40 racial balance in every school in the system among the faculty.

The personnel department has been engaged in a tragic comic game of fruit basket turnover in order to try to meet this requirement of 60% white faculty and 40% black faculty in every student system.

But we have come up to the terms of the order, give or take a few in our brief are listed the actual faculty assignments for the year including the number of assignments yet to be made in order to reach the ratio.

Chief Justice Warren E. Burger: Mr. Philips it may -- I hope it doesn’t interrupt your chain of arguments but I’m concerned about these missing students, 1001 school of the all but 59 out of 636 in another.

Mr. Abram L. Philips, Jr.: Yes, sir.

Chief Justice Warren E. Burger: Has anyone made any inquiry as to whether or not they are just dropouts since you said there’s no school’s compulsory attendance --

Mr. Abram L. Philips, Jr.: Yes, sir.

Chief Justice Warren E. Burger: -- or whether they moved out of the district or whether how many went to private schools or what?

Mr. Abram L. Philips, Jr.: Well, --

Chief Justice Warren E. Burger: Has that been pursued as part of the record?

Mr. Abram L. Philips, Jr.: Yes.

It’s not in the record because it’s come so late.

Chief Justice Warren E. Burger: Can you supplement that?

Mr. Abram L. Philips, Jr.: The enrolment figures are of October the 2nd.

Chief Justice Warren E. Burger: Could those figures -- could the record be supplemented readily to disclose what happens of these people?

Mr. Abram L. Philips, Jr.: It will disclose within reason because we won’t be able to locate each one but we know where many of them are.

For example, if you total up the difference between the assigned students, assigned by the court order and those enrolled, you come to a total of approximately 2000 or 2500 as I recall them.

I may be wrong in my figure.

I think it’s around 2500.

The total enrolment is down from last year over 4000 so we know within a reason that many of these missing students are within this 4000 who simply did not reenroll in public school this year.

Mr. Abram L. Philips, Jr.: Your Honor, the transfer policy is set out as an appendix to my brief.

The transfer of policies specifies transfers.

First, the majority to minority transfer of provision requiring that you furnish transportation and guarantee in priorities respects.

This was required first by the District Court and reaffirmed by the Court of Appeals.

The other transfer of provision is in order to obtain a course of study not available at the school where you attend and the other is for any good cause, non-racial in character and while we’re on transfer as I might mention this.

This year, we received approximately 3600 transfer applications where the normal number runs between 400 and 600 each year.

It’s surprising the number of transfer applications which attacks a doctor’s certificate attesting to the need of transfer of the child into a stable school in order to maintain or what is worst, to regain the physical and mental well-being of the child.

Unknown Speaker: How many of those were white?

Do you know how many white and how many colored as for transfer?

Mr. Abram L. Philips, Jr.: Your Honor, I think it runs because the proportion of white and black students in the system is approximately 60% white and 40% black.

I think the transfer has run as much as 80% white and 20% black but I would not wish to be held to that figure because this is just my recollection.

I did not comment on this in my brief and I don’t have the exact figure.

Unknown Speaker: Do you have any record showing how many of them wanted to be transferred to get away from long busing?

Mr. Abram L. Philips, Jr.: Your Honor, I think we have quite a few that would fall into that category.

If I might get into that, if I can get the clerk to help me move this map and get the other map.

Unknown Speaker: They’re not allowed to give that as a reason though, that’s not a permissible reason, does it under the existing system?

Mr. Abram L. Philips, Jr.: No.

Justice Thurgood Marshall: Well they have to give some other reason.

Is this new map you started on show zones also?

Mr. Abram L. Philips, Jr.: Yes. Sir?

Justice Thurgood Marshall: Does this new map also show school zone?

Mr. Abram L. Philips, Jr.: Yes, sir.

Justice Thurgood Marshall: Who drew those zones?

Mr. Abram L. Philips, Jr.: Your honor, the map I’m going to get to will be the Junior High zones that are now in the implementations as drawn by the court.

Justice Thurgood Marshall: The court drew the zone?

Mr. Abram L. Philips, Jr.: The court drew the zones.

These are the Junior High zones.

Unknown Speaker: And the other one is a HU zone?

Mr. Abram L. Philips, Jr.: HEW zones.

Unknown Speaker: HEW?

Mr. Abram L. Philips, Jr.: Yes, sir.

Unknown Speaker: Do you know how many of them live in Mobile?

Mr. Abram L. Philips, Jr.: The HEW?

Unknown Speaker: And the people who drew those zones?

Mr. Abram L. Philips, Jr.: Your Honor the HEW zones were drawn by HEW experts, one from Washington, one from North Carolina and one from Miami, Florida.

These zones were fashioned by the Court of Appeals and the District Court, of course the district judge is a resident of Mobile.

These are the Junior High Zones.

If you’ll look at Central Junior High School, the zone is a long, narrow zone running diagonally from northeast to southwest.

Central Junior High School, which is right here, was once a high school but by the court was this year to reduce to Junior High School.

The two other Junior High Schools near the tip of the zone, Eanes and Hall.

Both are integrated Junior High Schools.

Students down in this very tip of the zone are within walking distance of Eanes and Hall.

They are roughly 4 miles from the Central, diagonally across the heaviest traffic part of the city of Mobile, this being the central city of Mobile lying on the river.

Many of these students that are not going to school and Central is one that’s in the figures that you’ll find where 231 white students and 1563 Negro students were assigned and 1508 Negro students and 17 white students enrolled.

I present argument on behalf of the respondents Mobile County Council’s PTA which is an association of the PTA associations of the various schools in the system.

PTA getting to this chase as an intervenor, I think Mr. Philips’ statement in the record in this case will indicate the problem that the PTA or the members, the parents, the teachers and the students were faced with.

The number of changes that we have seen in the last few months is absolutely devastating.

I don’t think anyone of us in this courtroom could live with the changes that these people have had to face and each one was highly publicized in the newspaper because that was part of the order.

When the District Court made a change, it was publicized and each of the parents get rid of, now my child is going to school, he have had one over here, one over there and one over here.

Next month, next week sometimes, there would be revision either by the District Court or by the Court of Appeals.

So we intervene in the case on a number of grounds.

I think basically we were concerned with the fact that the people in Mobile wanted the neighborhood concept.

Mobile as you might -- Mr. Philips may have pointed out and I would like to reiterate a couple of, just a couple of points that the concentration of the colored or black population plus, if you might, if you will right in this area, right through here with a few engine.

This is a densely populated black area.

Mobile is a red light city or the metropolitan areas were the large, 155 square miles in the city itself.

But all the concentration on those things makes it more difficult.

It is the fact that on this side, if you like to see all this water, this is none but marsh land and river water, one town going on the river to Mobile County and I want this at one bridge.

I mean this is just a demarcation physical impossibility and nestled against the bank of all this water is a black community, see.

And all the rest of the county and the city is located to the west and to the north and to the south.

So the difficult problem is not even like the Charlotte case which had the community and nestled in the middle where you could go out in two directions, four directions at least.

In addition to that, since we’re on a junior high level, you can see why Washington and I don’t know whether you Justices can see as well but getting up a little higher, this zone right here is the Washington zone which Mr. Philips, Jr. and Mr. Greenberg have both discussed, the fact that people didn’t even attempt.

What you will see, the school is sitting way up here on a predominantly colored neighborhood then you will notice right here, this large population of students here that previously went to one of these other schools, either right here across to a few blocks so here are few block now travel as much as 12 in outmost to get there in possible.

Chief Justice Warren E. Burger: How far?

Mr. Samuel L. Stockman: I said on the 12-15 miles just around streets to get there and the heavy traffic at the most -- the time of day which is impossible.

I think this Court is faced with one simple problem and I say simple problem, it’s very complex but I think it’s come to time that we’re going to have to face up to the real issue, whether or not the constitutional right of the individual, he has any constitutional right at all to determine where he goes to school.

Maybe that’s only the simple fact but I think the real issue --

Justice Thurgood Marshall: Mr. Stockman, do you consider Junior High School a neighborhood school?

Mr. Samuel L. Stockman: I would think that in the context of my client, the Parent-Teacher Association, every school is a neighborhood school.

Justice Thurgood Marshall: Every school?

Mr. Samuel L. Stockman: Because in Mobile—

Justice Thurgood Marshall: In a city that has one high school, the high school is the neighborhood school.

You don’t mean that.

Mr. Samuel L. Stockman: I mean it from the standpoint of my client.

When I say that simply this, Mr. Justice Marshall, is that every parent feels an obligation to participate in the educational institution to which his child attends and this is an obligation that you feel in Mobile I guess as much as any other community.

That they feel an obligation to participate as a community in every school and no matter which school it is, whether it’s biracial or whether it’s uniracial.

They participate in the activities and the tragedy of the whole thing is as if Mr. Russell pointed out, is that these people, some of them, we are losing out of the schools, Mobile is losing to private schools and otherwise.

Some of the people who are leaders, their parents would otherwise be leaders and instruments in causing these schools to become a part of the community.

Even an underprivileged child under the structure of the PTA council, any given school receive many benefits from the council itself or from the PTA itself because of the fact that making people more interested are more instrumental in the school and a parent who has to take.

Now, look at the white.

If we attack the issue squarely before the Court as I see it in this case is not the issue of whether or not a child is bused 1 mile or 2 miles or 4 miles or 20 miles.

The issue is a fundamental constitutional right of the individual to be compelled to attend any particular school so we own the basis of race.

We need no nothing else but one thing to make the sign what’s on the plans sought by the petition, that is save the race of the child.

If you know the race of the child, we can assign but without we cannot.

And this is, this is being made this whole basis of this whole plan.

The school board, the Courts and they have time for this problem for seven years and it’s a physical impossibility to convene, put children in schools under the plan proposed by the petitioners.

And I say that and this, there is no act with public transportation in Mobile, the transportation company went broke and collapsed and the city picked up the transportation system in its hands and now running with extreme deficits.

There is no adequate busing facility.

The busing is a minimal amount of busing done in the semi-suburban area simply because people live so far from the schools and they’re built because the schools don’t accommodate them, and the county of this busing has an old rural county.

But at the same time, we held a problem here of the people in the system getting their children to school under this plan because every child, every child would have to be bused in every grade, almost under system and they just don’t have adequate buses, we are dealing with a $2 million, $3 million budget which Mobile does not have.

I like to just close by saying Mr. Chief Justice --

Justice Hugo L. Black: May I ask one question before you go?

Mr. Samuel L. Stockman: Yes.

Justice Hugo L. Black: Is the PTA of Mobile from those exclusively of whites?

Mr. Samuel L. Stockman: No, sir.

Justice Hugo L. Black: Its whites and colored?

Mr. Samuel L. Stockman: No sir, its whites and colored.

I might clarify that Mr. Justice Black and that there was in the past under the dual system two different associations.

They’ve had some trouble getting together in their representation and as a result, our organization representatives making up three members from each school that represented all blacks and whites and so the PTA council that we represent does have all the council, the council organization, three representatives in each school consists of blacks and whites.

And we just asked the Court to consider the fundamental constitutional issues, the feasibility test, the reason for this test or any other test which might be applied.

First of all we must apply with one question whether or not that test violates the constitutional guarantees of the individual who has an individual right, a constitutional right to not to be forced to go to the school or exclude from the school.

Thank you.

Chief Justice Warren E. Burger: Thank you Mr. Stockman.

Mr. Greenburg.

Argument of Jack Greenberg

Mr. Jack Greenberg: Mr. Chief Justice and may it please the Court.

There has indeed been a great deal of confusion in Mobile and that confusion has stemmed in considerable part from the fact that Judge Thomas has not given hearings in any of these plans for a period of two years and as an example, I would like to point to the question of the missing students.

One reason why there are some missing students is there has been a loss of population of approximately 17,000 over the past few years in Mobile because of the closing of the Brookley Air Force base but another reason is that there is something down there known as non-conformers, children going to school as they please, where they please in violation of the court order.

Mr. Cooper and I went in to see Judge Thomas about two weeks ago to get a hearing on the non-conformers and he said he would set it for some time in November.

We pointed out that we thought there was some urgency to setting it and setting it soon because school was going on now and he said he would set it in November and if we disagreed, we could go to the Fifth Circuit.

That is why we have had confusion in Mobile and why it’s very difficult to understand what’s going on.

Justice William J. Brennan: Mr. Greenberg, is there an answer to how, why some 800 or more blacks for example are in Blount and were assigned there?

Mr. Jack Greenberg: Well there have been wholesale transfers of students, again in violation of the order and only last week, the Justice Department was able to get a hearing before Judge Thomas and get a temporary restraining order against that but it may be part of the wholesale transfers, it may be non-conformers.

So far as the [Voice Overlap]

Justice William J. Brennan: You mean voluntary transfers or its involuntary transfers?

Mr. Jack Greenberg: These are voluntary transfers granted in violation of where the assignments ought to be under the order.

Now Alternative B One, contrary to what Mr. Philips and Mr. Stockman say is not a plan we’re urging upon this Court.

Because we cannot urge it with any confidence, there has never been a hearing on that.

However, it is a general notion of the kind of thing that can be done if one wants to assign students according to normal systems or school administration of Mobile and end up with an integrated system.

Chief Justice Warren E. Burger: Mr. Greenberg, before you leave the question Justice Brennan was putting to you, you said there were 800 Negro, it was more than were assigned at the school and I want to get a little bit clearer picture of what’s the explanation for it.

Mr. Jack Greenberg: I don’t know.

Chief Justice Warren E. Burger: Some of it voluntary and some of it --?

Mr. Jack Greenberg: I don’t know Mr. Chief Justice.

We’ve been unable to get a hearing.

Chief Justice Warren E. Burger: Could any of them be there involuntarily?

Mr. Jack Greenberg: Well, the answer is I just don’t know.

The thing that we have focused on mostly is first of all wholesale transfers, we don’t know to what extent they’re voluntary.

If they are involuntary, we don’t know whether or not they have been coerced or suggested in any way.

We do know there are large numbers of so called non-conformers, children going to school without official assignment, just attending schools and we have not been able to get a hearing and there is indeed confusion down there but I can describe a good part of it to what I’ve just said.

May it please the --

Unknown Speaker: Do you mean that Judge Thomas has not given you a hearing over any hearing at all at any time?

Mr. Jack Greenberg: There have been hearings at various times.

The plan that’s in effect was put in following a pre-trial conference but a trial was never held.

We just put right in by Judge Thomas without a hearing.

At an earlier stage, we made a motion to the Court that this thing hadn’t occurred several times, saying that we would like a procedure set down for filing objections and papers and having a hearing and it was denied and that’s all set forth in our brief and it’s in the record.

May it please the Court, despite the considerable disagreement over the matters discussed in the last moment or two; there has been nevertheless a remarkable amount of agreement among the parties and the courts below.

With the exception of the more plaintiffs who feel that nothing at all ought to be done and the respondents in this case who have not addressed themselves to the question of what ought to be done, everyone or perhaps everyone appears to agree that race can and must be taken into account to undo the effects of the jury segregated school system.

The Fifth Circuit has moved lines and it has gerrymandered, the Fourth Circuit has done that and indeed in the Swann case itself has approved busing and noncontiguous zoning for Junior High School and High School students.

The Solicitor General advocates gerrymandering when it feels it’s appropriate, building schools, closing schools.

Charlotte School Board believes it can gerrymander in the face of the advice of its counsel but its counsel thinks it can locate schools but not move school zone lines.

The Athens Board believes it can do what it calls pocket busing which is what we call noncontiguous zoning or clustering.

Judge McMillan believes that relief should be effective and he should use a variety of techniques to achieve a result of no identifiable Negro school.

We urge in the Mobile case that the judgment below be reversed, that the case be sent back in accordance with the principles of Alexander against Holmes County for hearings and a timetable I suggest to pay Alexander but a plan, not alternate of B1 devised by HEW but a plan of that general nature, using the techniques that have been available in Mobile be employed and that the test be one of results not anything else.

Now, I would say in further response to the Chief Justice’s question of yesterday which was essentially when can the Federal Courts get out of this business.

That is the Federal Courts will get out of this business as soon as the results are achieved with an identifiable clear test is decided upon and people know what they have to do where in Mobile, as an extreme example, they haven’t had the slightest (Inaudible).

Chief Justice Warren E. Burger: Now you said a moment ago that it seemed to be agreed that the race could be taken into account in the dismantling of a dual system.

Now, one of the complaints made with respect to Judge McMillan’s order which were not been doing now but it would perhaps relate to others is that 71-29 ratio mechanically applied is doing more than taking it into account.

Mr. Jack Greenberg: I don’t believe he did that, Mr. Chief Justice.

Chief Justice Warren E. Burger: Well, I’m not suggesting he did precisely but I’m saying that if you had 71-29 and then applied that rigidly, you certainly would be doing, more than taking it into account.

Mr. Jack Greenberg: We would not urge that, we do not urge that --

Chief Justice Warren E. Burger: Would you think Mr. Greenberg that a 71-29 population pattern would be satisfied by variations in various districts that would go some 80-20, some 60-40?

Mr. Jack Greenberg: I think certainly in many cases that would be satisfied.

Chief Justice Warren E. Burger: How wide a variation from the precise 71-29 pattern do you think is tolerable?

Mr. Jack Greenberg: I would then have to look at the workability test in one aspect of that at the general distribution of population the community and another aspect.

I think Judge McMillan handled it quite pragmatically, he had a 4% school and he had a 40% school.

He did not insist upon a rigid ratio, we don’t but just as in the jury cases which have been spoken about which I think are really not appropriate in many respects, the universe is larger, you’re not dealing with 12 people, you’re dealing with 900 people.

You do look at the numbers to get some idea of whether or not there’s been to wide a deviation.

It’s impossible to come to a judgment without looking at the numbers and a 90-10 district would be one thing and a 50-50 district would have to be another, you can’t avoid them.

Chief Justice Warren E. Burger: If there isn’t some room left to substantial room for play in the joints, you’re bound to have constantly problem with reapportionment, aren’t you?

Mr. Jack Greenberg: You’re entirely right Mr. Chief Justice and Judge Johnson in the Carr against Montgomery County School Board of Education case in which he was reversed by the Fifth Circuit which was in turn reversed by this Court and Judge Johnson’s orders reinstated.

He set up a ratio and I think it was a 60-40 ratio if I recall correctly and allowed a 15% deviation because he needed something he could administer.

When he was talking to the school district there in terms of generalities and not in terms of results, it just didn’t work.

When he had something he could administer, he then had something that was clear they had an order they knew they could follow and as far as I can tell it has worked very well.

Not only there but in hundreds of districts around the country.

May it please the Court 16 years have passed since the first Brown decision was handed down by this Court and in Mobile as in hundreds of cities and towns across the south, black children born in the year of that decision have completed their entire public school careers without ever attending a segregated school.

In the record by district resistance of the Constitution is well known to this Court and I will not repeat it here.

But I do urge upon this Court that now, in 1970, last begins to appear than more than a decade and a half of litigation is bearing fruit in desegregation decreased whether litigated or consented to.

It is essential to the integrity of our legal structure and to the faith, Mr. Griswold spoke about black separatism.

I mean to the faith of the effectiveness of the remedy fashioned by a District Court comport with the momentous nature of the Constitutional Right which is to be assured.